Update: $1.3M legal malpractice verdict overturned

We covered the verdict two years ago, noting an editorial that said “Pundits have argued that real tort reform will only come when the lawyers start suing the other lawyers…. that time has arrived.” But the Mississippi Supreme Court held that the lawyers had not committed malpractice as a matter of law.

Perhaps correct, and I shed no tear for the plaintiff’s loss of a windfall. But it sure would be nice if doctors got the same benefit of the doubt. Instead, when medical experts differ over whether a doctor acted reasonably, courts throw up their hands and decide it’s okay for a jury to decide. Lawyers seem not to have to worry about being held to that sort of second-guessing standard. (Baker Donelson Bearman & Caldwell, P.C. v. Muirhead, 2006 WL 177593 (Miss. January 26, 2006).) David Rossmiller discusses the case, but dodges all of the substantive issues.

Ok, I’ll bite. When medical experts disagree over whether a doctor’s negligence caused physical harm, who should decide, other than a jury? An elitist, unaccountable judge? A self-interested AMA? Pundits who publish blogs?

A strict-constructionist would look to the U.S. Constitution for the answer. Here’s what it says: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” (Amendment VII)

Or, we can say that when reasonable minds differ whether a doctor’s actions were reasonable, it’s not negligence as a matter of law—which is what courts effectively do in the case of legal malpractice allegations and in many other circumstances where deference is granted to professional decision-making without any implications for Seventh Amendment rights.

Yes, but who gets to make the call as to who’s mind is “reasonable”? There are some very unreasonable doctors out there, just as there are some very unreasonable lawyers, accountants, architects, and dentists. At some point, a subjective decision has to be made as to which expert’s opinion is valid and which expert’s opinion is invalid. Who gets to make that decision? To simply say “two licensed professionals disagree, therefore no negligence occurred” avoids the very heart of the issue. An expert can always be found to disagree with another. If finding a disagreeing expert offers complete immunity to liability, then there is no longer any such thing as professional malpractice. That would be an absurd result.

I don’t think there are doctors who would testify that it’s reasonable for a doctor to operate drunk or to amputate the wrong leg or any of the other horror stories that plaintiffs’ lawyers trot out when sensible people seek reform.

Again, we grant immunity to all sorts of actors–including attorneys–when reasonable minds disagree as to the appropriateness of their actions. There’s no reason not to grant the same freedom to doctors. Too many honest disagreements are elevated to alleged malpractice by virtue of after-the-fact second-guessing.

If lawyers were to be held to the same standards as doctors, 70% of them would be guilty of malpractice on the average case, because the majority of participants in the legal system get less than an optimal result, and one can always use 20/20 hindsight to identify something the lawyer might have done better. Courts don’t allow that sort of second-guessing for allegations of legal malpractice (to the extent of even immunizing a lawyer for a failure to understand the straightforward Rule Against Perpetuities!), but do for allegations of medical malpractice.